Citation Nr: 0327155
Decision Date: 10/10/03 Archive Date: 10/20/03
DOCKET NO. 97-15 803 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for a bilateral hip
disability, including degenerative joint disease.
2. Entitlement to an initial evaluation in excess of 10
percent for hypothyroidism.
REPRESENTATION
Appellant represented by: New Jersey Department of
Military and Veterans' Affairs
ATTORNEY FOR THE BOARD
W. Yates, Counsel
REMAND
On February 24, 2003, the Board of Veterans' Appeals (BVA or
Board) ordered further development in your case. Thereafter,
your case was sent to the Board's Evidence Development Unit
(EDU), to undertake the requested development.
Prior to May 1, 2003, the Board's regulations provided that
if further evidence, clarification of the evidence,
correction of a procedural defect, or any other action was
essential for a proper appellate decision, a Board Member or
panel of Members could direct Board personnel to undertake
the action essential for a proper appellate decision. See 38
C.F.R. § 19.9(a)(2) (2002).
However, on May 1, 2003, the United States Court of Appeals
for the Federal Circuit ("Federal Circuit") invalidated 38
C.F.R. § 19.9(a)(2), in Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003)
(hereinafter "DAV"). The Federal Circuit held that 38
C.F.R. § 19.9(a)(2), in conjunction with the amended rule
codified at 38 C.F.R. § 20.1304, was inconsistent with 38
U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies
appellants "one review on appeal to the Secretary" when the
Board considers additional evidence without having to remand
the case to the agency of original jurisdiction (AOJ) for
initial consideration, and without having to obtain the
appellant's waiver.
Following the Federal Circuit's decision in DAV, the General
Counsel issued a precedential opinion, which concluded that
DAV did not prohibit the Board from developing evidence in a
case before it, provided that the Board does not adjudicate
the claim based on any new evidence it obtains unless the
claimant waives initial consideration of such evidence by
first-tier adjudicators in the Veterans Benefits
Administration (VBA). VAOPGCPREC 1-03. Based on this
opinion, the Board continued, for a short time, to request
development via the Board's EDU.
Recently, in light of the Federal Circuit Court's decision
and other policy considerations, the Department of Veterans
Affairs (VA) determined that VBA would resume all development
functions. In other words, aside from the limited class of
development functions that the Board is statutorily permitted
to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all
evidence development will be conducted at the regional office
(RO) level.
In the event that you appeared at a hearing before a Veterans
Law Judge (VLJ) other than the VLJ signing this remand, be
advised that if your case is returned to the Board, it will
be reassigned to the VLJ who conducted your hearing.
Accordingly, this matter is REMANDED to the RO for the
following:
1. Make arrangements to obtain any
medical records (including hospital
summaries, clinical records, outpatient
treatment records, x-rays, etc.)
pertaining to appellant's alleged post-
service treatment as a civilian for a
bilateral hip disability at a military
dispensary claimed as the 209th [General]
Dispensary at Hanau, Germany, during the
period between October 1988 and 1996.
The appellant's assistance as to
approximate dates of treatment, release
forms, or other needed information should
be requested as needed. Any records
obtained should be associated with the
claims folders. If records are
unavailable, this should be specifically
recorded in the claims folders.
2. After the above development has been
attempted, make arrangements with the
appropriate VA medical facility(ies) for
the following:
A. With respect to the issue of
entitlement to service connection for a
bilateral hip disability (including
degenerative joint disease), have an
appropriate VA physician, such as an
orthopedist, review the claims folders
(including relevant history, complaints,
findings, and diagnoses as recorded in
the pertinent records) and express an
opinion as to the following question:
Is it as likely than not (as
distinguished from mere possibility) that
appellant's bilateral hip disability
(including degenerative joint disease)
(a) had its onset in military service or
within a one-year period after service,
or (b) is related to any service-
connected disabilities? If it is
determined that additional examination is
needed to respond to that question such
examination should be scheduled. If the
answer is in the negative, this should be
specifically stated for the record. It
should be pointed out that service
connection is currently in effect for
lumbosacral strain; right knee
chondromalacia with traumatic arthritis;
hypothyroidism; left knee chondromalacia
with traumatic arthritis; residuals of
right ankle strain; residuals of left
ankle strain; residuals of left hand
fracture; residuals of right fifth
metatarsal base fracture; and residuals
of left wrist ganglion cyst excision. If
these matters cannot be medically
determined without resort to mere
conjecture, this should be commented upon
in the report. A discussion of the facts
and the medical principles involved will
be of considerable assistance to the
Board.
B. With respect to the service-connected
hypothyroidism rating issue, arrange
appropriate examination(s), such as an
endocrinologic examination, to determine
the nature and current severity of
appellant's hypothyroidism disability.
The entire claims folders should be
reviewed by the examiner(s) prior to
examination(s). All indicated tests and
studies should be performed, including,
but not limited to, thyroid hormonal
level laboratory studies (T4 and/or T3).
The examiner(s) should record all
relevant symptoms and clinical findings,
including but not limited to, the
following: Any fatigue, weight
loss/gain, cardiovascular involvement,
bradycardia, mental
disturbance/sluggishness, myxedema, cold
intolerance, constipation, muscular
weakness/loss of muscular tone,
sleepiness, and slow return of reflexes.
If appellant has any such
symptoms/clinical findings, the
examiner(s) should attempt to
differentiate which symptoms are
attributable to the service-connected
hypothyroidism versus any other
conditions, to the extent reasonably
feasible. If any such symptoms and
clinical findings are attributable to the
service-connected hypothyroidism, their
extent and severity should be adequately
described. The degree of functional
impairment or interference with daily
activities, if any, by the service-
connected hypothyroidism should be
described in detail. If these matters
cannot be medically determined without
resort to mere conjecture, this should be
commented upon in the report(s). A
discussion of the facts and the medical
principles involved will be of
considerable assistance to the Board.
3. After the development requested above
has been completed to the extent
possible, the RO should again review the
record. If any benefit sought on appeal
remains denied, the appellant and
representative, if any, should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.44-8.45 and
38.02-38.03.
R. GARVIN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).